Can a state agency be sued to enrforce laws?
johnm...@yahoo.com
license from the state gov't (thru one of the state gov't agencies
charged with administering the law chapter for this type of license).
The license process takes around 2 years and costs approx $20,000.
It's a very strict licensing process and once you have the license
they watch you like a hawk...one wrong violation of the law and it's a
$500 fine.
A competitor of mine has never bothered to get a license. They have
been sent over a dozen c&d letters by the state agency charged with
overseeing our business type and have ignored them all. They advertise
online, web site, paper, etc. The statutes governing our business
clearly state that operating without a license is a felony plus a
$5,000 fine.
However, the state agency flat out will not do anything else about it.
I talked to the county DAs office and the lawyer there explained to me
that the state agency must refer the matter to the municipal police
dept, who then collects evidence and if sufficient evidence exists,
sends it to the DA and if the DA feels evidence exists, issues an
arrest warrant and prosecutes.
Sounds simple enough. But the state agency always says "we don't have
the time or resources" bla bla bla. But if you do it by the book and
have a license, they watch you and hound you 24/7. Yet if you openly
operate blatantly illegally, they just brush you off.
Is there any way to force the state gov't to take action thru the
courts? Can a lawsuit be filed to force the state agency to start a
criminal prosecution and force them to enforce their own laws?
Mike Jacobs
wrote:
> The type of service business I own requires obtaining a priveledged
> license from the state gov't (thru one of the state gov't agencies
> A competitor of mine has never bothered to get a license. They have
> been sent over a dozen c&d letters by the state agency charged with
> overseeing our business type and have ignored them all.
> However, the state agency flat out will not do anything else about it.
Typical, these days, with under-funded enforcement agencies.
<snip discussion of how a criminal prosecution is commenced>
> Is there any way to force the state gov't to take action thru the
> courts?
Technically, there is something called a "Writ of Mandamus" whereby
any person can petition the court, and the court can force an
executive agency of the government to do something that the agency is
REQUIRED to do by law but refuses to do. However, if the agency has
DISCRETION whether to do that thing or not, this Mandamus remedy does
not apply.
You do not cite us to the particular agency statute or regulations at
issue, or even tell us what State you're in, but my guess is that both
the agency, and the prosecutors, have discretion whether to charge a
violator or not, and whether to prosecute or not. So, as far as THAT
remedy is concerned, IMO you're out of luck.
What you are asking to be done is exactly analogous to what a law-
abiding person might waant to see done when he is toodling along at 55
mph on the freeway in strict compliance with the law, yet sees
numerous other motorists blasting past him doing 75 or 80 with
impunity. You cannot force the cops to ticket all those violators,
and even if they did, you cannot force the prosecutor to prosecute
every charge that is made by the police. Your reward is simply your
own warm fuzzy feelings of being a good citizen who complies with the
law.
Certainly we do NOT advocate that you become a scofflaw like your
competitor, and throw professional ethical standards to the wind.
Just like it ironically seems "there's never a cop around" to ticket
all the speeders until the one day YOU go a few miles over the limit,
you would run the risk that YOU would get slapped with violations if
you ignored the legal requirements for your business.
And it is NO DEFENSE to those citations to say, "But Your Honor,
_other_ violators were getting away with it," any more than that
defense would win over the judge's mind in your favor in Traffic
Court. Like this agency you refer to, even the traffic cops have
limited resources, so when they stop _one_ speeder, the rest of the
speeding motorists can go whizzing merrily by, with impunity. It
would be just your bad luck that _you_ would be the one violator who
got selected to be stopped. 8*)
> Can a lawsuit be filed to force the state agency to start a
> criminal prosecution
Probably not.
> and force them to enforce their own laws?
If there is some MANDATORY thing this agency is supposed to be doing,
but isn't doing, then PERHAPS you could succeed with a Mandamus
action. You haven't given us any hint of what that mandatory action
might be, though.
OTOH you may be able to sue your scofflaw competitor, DIRECTLY, for
damages he has caused to YOUR business by his illegal, unlicensed
pursuit of your profession - IF ANY. Again, without you providing
any details I have no idea what the scope of such a claim might be.
But, it wouldn't hurt for you to PAY AND CONSULT A LAWYER in your
local area who has experience litigating "business torts" and who
could give you some ideas, after hearing your facts in a confidential
setting, regarding possible legal actions you might be able to pursue,
what your chances of recovery might be under each of those theories,
and what a full pursuit of such a case would probably cost. Consider
the few hundred bucks such an initial consultation is likely to cost
(or, if you're lucky, you may find a business litigator who will give
you an initial consultation for free, although this practice is far
more common with personal-injury tort claims) as cheap insurance for
the continued viability of your business model.
If you already have a general business attorney, ask him. If you
don't, you should get one - and then either let him advise you, if
this matter is something within his competence, or let him refer you
to a business-litigation specialist. If you don't have an attorney
already lined up, ask your friends and colleagues for the names of
lawyers they respect and trust - doesn't matter what field of law.
Then, call those lawyers and ask them who _they_ would recommend, to
take on your type of complaint. Once you get the same name or names
popping up several times, you will know that this is the local "go to"
person, respected by his or her peers for expertise in that particular
niche of legal practice, and then that person will be who you should
call to handle your case.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Dick Adams
> The type of service business I own requires obtaining a priveledged
> license from the state gov't (thru one of the state gov't agencies
> charged with administering the law chapter for this type of license).
> The license process takes around 2 years and costs approx $20,000.
> It's a very strict licensing process and once you have the license
> they watch you like a hawk...one wrong violation of the law and it's
> a $500 fine.
State Boards are suppose to watch over you like a Hawk. I have
yet to meet anyone who does not tremble at the thought of explaining
their behavior to a State Board and I doubt I ever will!
> A competitor of mine has never bothered to get a license. They have
> been sent over a dozen c&d letters by the state agency charged with
> overseeing our business type and have ignored them all. They advertise
> online, web site, paper, etc. The statutes governing our business
> clearly state that operating without a license is a felony plus a
> $5,000 fine.
> ...
> Is there any way to force the state gov't to take action thru the
> courts? Can a lawsuit be filed to force the state agency to start a
> criminal prosecution and force them to enforce their own laws?
Yes! There's the expensive way and then there's the inexpensive way.
The first way is to take your case to a court. The second is to take
your case to the media. The second way is more fun because it will not
have significant pocket costs and someone else will fight your battles
for you.
You could get some more detailed, situation specific suggestions
if you stated your occupation and your State.
Dick - I never was am attorney
Robert Bonomi
johnm...@yahoo.com <johnm...@yahoo.com> wrote:
[[.. sneck ..]]
>Is there any way to force the state gov't to take action thru the
>courts? Can a lawsuit be filed to force the state agency to start a
>criminal prosecution and force them to enforce their own laws?
See "writ of mandamus".
Silence DoGood
<johnmoli...@yahoo.com> wrote:
> Is there any way to force the state gov't to take action thru the
> courts? Can a lawsuit be filed to force the state agency to start a
> criminal prosecution and force them to enforce their own laws?
You probably have the option to take a complaint of unfair competition
to a different prosecutor or agency; if it involves interstate
commerce, possibly a federal department or agency.
These people are probably engaged in other illegal activities, You
might try to get them on that. Remember, Al Capone went to jail for
tax evasion!
Find out the committees of your state legislature who oversee the
agency and ask for an investigation.
Ask your local, or any, grand jury to investigate and, at minimum,
issue a presentment that the agency find a way to do its job or be
abolished so nobody has to pay it.
Contact the BBB and consumer investigators.
If you are fined, it may be a defense that you have to do what you
have to do. Gather strong evidence and keep it hoarded.
If you are ready to take some risk (Think Susan B. Anthony.) refuse to
pay the fees and/or heed the laws based on their being unfairly
applied. There is a good chance they will not want to prosecute you.
But if you expect to get that over on a jury, and I'm on it, I'll
expect you to have tried every other option first and, other than not
paying fees, expect you to be in absolute compliance with
restrictions.
Please squeak! Government needs to choose either to be responsive or
get out of our lives. If nobody goes to the time and effort to get it
under control, it will just get worse. You portray a lose/lose
situation from a public standpoint. If it's as you say, we pay our
taxes for the agency and get less than nothing in return. This may be
simply money. They know they can impose, but never collect, a $5,000
fine from the offenders, but they can sure get money from you! You
describe an agency obsessed with self-perpetuation, It should be a
warning sign as to the dangers of relying on agencies collecting the
money to support themselves.
In my lifetime, I've seen police departments return to respectability,
Lake Erie cleaned up, and National Parks preserved. All of it took
effort and even sacrifice.
I should make the point that these administrators may just be dense.
Keep at them. Shame them. Become a real person who is being hurt by
their inaction. Remind them of the purpose of their agency. Show them
pictures of your kids and ask how you can send them to college. Send
them a copy of their oath of office. Tell them what you expect not
just of the agency, but of the individual failing to act. Make it
clear that you cannot abide by their reasoning that failing to act
based on excuses is acceptable or viable. Tell them that you INTEND
for the situation to change. Ask for their specific authorization to
use "discretion" in not pursuing obvious violators in the face of
credible complaints.
You don't always have to "win" to gain from a lawsuit. Many of these
fly-by-nights evaporate into thin air when facing discovery, much less
a jury trial. A request for injunctive relief or other "civil" matters
are not subject to protection under the right against self-
incrimination for financial disclosure and other criminal matters. The
request might be to enjoin them against advertising without displaying
their license number. You claim "irreparable harm" because they are
putting you out of business if you operate under the law and you do
not have a reasonable chance to recover damages.
Just a thought here, and maybe wait to see if others find holes in
this...
You can't send something with the attorney general's name and address,
but how about this?
Send a registered letter to the perpetrator, receipt requested, from
"Anonymous BXCCYQ" c/o attorney general _______ with the state address
listed, Then send a copy of your letter to the attorney general, the
head of the agency, the head of senate and house commitees and your
state senator and representative. Don't say anything you can't back
up! I suggest a simple question: "Where do you display your license?"
Make sure that you cannot be seen as impersonating an official, or
defaming anybody!
Also, organize properly licensed practitioners to go after these. In
Texas, the state bar was extremely effective in stomping out a
tendency of notary publics to give legal advice. How they did that is
a good model.
Stan K
> On Dec 28 2009, 11:47�pm, "johnmoli...@yahoo.com"
>
> <johnmoli...@yahoo.com> wrote:
> > Is there any way to force the state gov't to take action thru the
> > courts? Can a lawsuit be filed to force the state agency to start a
> > criminal prosecution and force them to enforce their own laws?
>
> You probably have the option to take a complaint of unfair competition
> to a different prosecutor or agency; if it involves interstate
> commerce, possibly a federal department or agency.
>
> These people are probably engaged in other illegal activities, You
> might try to get them on that. Remember, Al Capone went to jail for
> tax evasion!
>
> Find out the committees of your state legislature who oversee the
> agency and ask for an investigation.
>
> Ask your local, or any, grand jury to investigate and, at minimum,
> issue a presentment that the agency find a way to do its job or be
Unfortunately, all the suggestions fail to take into account the
following-
1. don't screw with a person's paycheck, and
2. the person you're going after may have political or crime
connections.
No matter how illegal the competing business is, the bottom line
remains that the people running it or working for it are making their
living from it, and could quickly take any threat against its
continued operation as a personal threat against their own livelihood,
and respond personally.
In the case of political connections, the government has the power to
destroy somebody's business, even through illegal means. Even if you
can eventually recover damages against the government, which isn't a
slam-dunk, you need shelter, food, and clothing now, and your mortgage
holder, grocer, butcher, and retail store owners aren't going to wait
5-10 years for payment while you wait for, and hope for, the
government to pay up.
I remember a situation I got into during the Nixon price control era.
A few days after the controls went into effect, a local gas station
raised his price. When I mentioned price controls and federal agents
to him, I got a response that hinted I should just mind my own
business if I knew what's good for me.
The point is that it's often difficult to work within the law when the
other guy is willing to do things outside it, including personal
retaliation, even if illegal, against the property and safety of his
adversary.
Barry Gold
>> Is there any way to force the state gov't to take action thru the
>> courts? Can a lawsuit be filed to force the state agency to start a
>> criminal prosecution and force them to enforce their own laws?
Silence DoGood <Silence...@angelic.com> wrote:
>You probably have the option to take a complaint of unfair competition
>to a different prosecutor or agency; if it involves interstate
>commerce, possibly a federal department or agency.
Excellent advice.
>might try to get them on that. Remember, Al Capone went to jail for
>tax evasion!
Yes, but it's _still_ not OP's choice. If he can convince any gov't
agency, anywhere, to go after them, he will have improved his
situation. But he can't "get them on" anything by himself.
>Find out the committees of your state legislature who oversee the
>agency and ask for an investigation.
Excellent advice. Also the advice to contact the BBB and consumer
investigators at his local newspaper or TV station.
>Ask your local, or any, grand jury to investigate and, at minimum,
>issue a presentment that the agency find a way to do its job or be
>abolished so nobody has to pay it.
Now you're getting quixotic again. "Issue a presentment"? To whom?
>If you are fined, it may be a defense that you have to do what you
>have to do. Gather strong evidence and keep it hoarded.
Bad advice. OP should stick to those things that are legal. Silence,
you are giving advice that may get OP in trouble. And when OP's
business lies in ruins because he has failed to keep up his license or
otherwise violated the law -- and been shut down for it -- what then?
Will you say, "Well, too bad, it should have worked out better"?
Will you come up with some money to help him get back on his feet?
I would call what you are doing perilously close to UPL, except that
you aren't charging for it and AFAIK anybody can make remarks, even
dangerously foolish ones, as long as they don't hold themselves out as
lawyers or charge for their advice.
>If you are ready to take some risk (Think Susan B. Anthony.) refuse to
>pay the fees and/or heed the laws based on their being unfairly
>applied. There is a good chance they will not want to prosecute you.
Au contraire, the odds are that they _will_ go after OP for his unpaid
license fees plus penalties for late or non-payment. Those fees are
how they come up with the money to pay the salaries of all the
bureaucrats who aren't doing their jobs.
Even if they don't have the resources or the will to pursue OP's
competitor, you can be that they will notice if somebody they have
licensed suddenly stops paying. They might not actually send somebody
out to see if he's still in business but if they do, they _will_ go
after him. And "Joey did it, so why not me" will not stand up as a
defense in court, any more than it would with a parent who knows what
they are doing.
>Please squeak! Government needs to choose either to be responsive or
>get out of our lives. If nobody goes to the time and effort to get it
>under control, it will just get worse.
This is true. NOnetheless, there may be reasons why the agency in
quesiton isn't doing anything about the competitor. It may be that
they are on shaky legal ground. In that case, of course, OP _can_ get
away with ceasing to pay his fees. But I wouldn't bet my business on
that, and I wouldn't advise anybody else to do so either. At least,
not without consulting a real lawyer to see what his options are.
Reasons why a state agency doesn't enforce license rules:
. The license isn't really required (either the law doesn't really
cover the competitor, or there are constitutional problems with the
law).
. The agency is involved in one or more high-profile cases that will
help them get more funding from the legislature, and doesn't want to
use their resources to go after "small-potatoes" violations.
. The agency simply doesn't have enough staff to pursue all the
violations. This may be because violations are rampant (e.g., the
hundreds of marijuana dispensaries in the city of LA) or because
recent budget cuts have left them with a skeletal enforcement staff.
>I should make the point that these administrators may just be dense.
>Keep at them. Shame them. Become a real person who is being hurt by
>their inaction.
In most cases this won't do anything. Even if they care, they are
more likely to care about somebody who is actively harmed (e.g., a
consumer who is defrauded or injured) than somebody like oP who is
passively harmed (because he pays fees and complies with rules that
his competitor doesn't).
Worse yet, the course of action you propose can result in OP being
thought of as a "troublemaker". He would be antogonistic to the very
bureaucrats that he hopes will help them. This can result in them
paying especial attention to the way he does his business.
>Remind them of the purpose of their agency. Show them
>pictures of your kids and ask how you can send them to college. Send
>them a copy of their oath of office.
Bureaucrats mostly don't _take_ an oath of office. Some states still
require a "loyalty oath", but that just basically says that you don't
support any group that plans to overthrow the government by force and
violence.
>Tell them what you expect not
>just of the agency, but of the individual failing to act. Make it
>clear that you cannot abide by their reasoning that failing to act
>based on excuses is acceptable or viable. Tell them that you INTEND
>for the situation to change. Ask for their specific authorization to
>use "discretion" in not pursuing obvious violators in the face of
>credible complaints.
With few exceptions, they _always_ have discretion. There are a very
few actions that are classed as "ministerial", which *must* be done.
Mostly those have to do with either keeping the government running
(e.g., the employees must be paid if they work) or with things that
are "fundamental rights". For example, the county clerk cannot
refuse to issue you a marriage license because he doesn't like you.
If you meet the requirements, the license is mandatory.
>You don't always have to "win" to gain from a lawsuit. Many of these
>fly-by-nights evaporate into thin air when facing discovery, much less
>a jury trial.
Except that OP doesn't have "standing" to sue them. If they have a
lawyer, he will move to have the case dismissed for lack of standing,
and perhaps ask for rule 11 sanctions against OP.
>A request for injunctive relief or other "civil" matters
>are not subject to protection under the right against self-
>incrimination for financial disclosure and other criminal matters. The
>request might be to enjoin them against advertising without displaying
>their license number.
The state can sue for enforcement of such rules. OP cannot -- or at
least not successfully.
>Just a thought here, and maybe wait to see if others find holes in
>this...
It's almost _all_ holes.
>You can't send something with the attorney general's name and address,
>but how about this?
>
>Send a registered letter to the perpetrator, receipt requested, from
>"Anonymous BXCCYQ" c/o attorney general _______ with the state address
>listed, Then send a copy of your letter to the attorney general, the
>head of the agency, the head of senate and house commitees and your
>state senator and representative. Don't say anything you can't back
>up! I suggest a simple question: "Where do you display your license?"
>Make sure that you cannot be seen as impersonating an official, or
>defaming anybody!
Which is why he should not send something on a letterhead or a return
address that appears to be the state Attorney General.
What a horrible hole you are advising OP to dig himself into.
>Also, organize properly licensed practitioners to go after these. In
>Texas, the state bar was extremely effective in stomping out a
>tendency of notary publics to give legal advice. How they did that is
>a good model.
The state bar _does_ have the statutory authority to pursue people who
engage in UPL. OP does not. Neither do you.
Let me make this clear: if OP follows your advice, he is likely to
find himself significantly poorer, perhaps out of business. At the
very least, he will have wasted significant effort for no benefit.
And if OP loses his business or a bunch of money following your
advice, there is at least a chance that he will then see a _real_
lawyer -- who will help him sue _you_ for your bad advice.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org